The Constitutional Duty for ‘Public Value’ in Municipal Stormwater Management in South Africa

Abstract

In South Africa, stormwater management is a constitutional duty of local government. However, many municipalities face recurring stormwater flooding that devastates communities, interrupts schooling, contaminates water sources, and amplifies inequality, particularly in informal settlements. Therefore, stormwater flooding is a symptom of local government’s failure to manage stormwater systems effectively. This failure stems from a collapse of fundamental tenets of public value in local government, including accountability, good governance, and the political will to prioritise citizens’ constitutional rights. This paper argues that an implied constitutional duty to adopt a ‘public value’ approach to stormwater management can be inferred from South African law. While the term ‘public value’ is not explicit in the Constitution, this paper contends that the duty to infuse public value in stormwater management emanates from the Constitution’s foundational values, public administration principles, the transformative vision of the Bill of Rights and the developmental mandate of local government. This paper accordingly proposes a public value approach to reimagine municipal stormwater management through intergovernmental financing, oversight and support. These measures include strengthening provincial oversight through binding directives, mandating climate-resilient national engineering standards, ring-fencing maintenance budgets, linking national infrastructure grants to maintenance performance, and prioritising the co-production of solutions with communities, especially through the in-situ upgrading of informal settlements.